I concur with Mr. Justice Woodward, except I do not frhirtk the contract was entirely unilateral. It is binding upon the •plaintiff. The answer specifically admits the allegation in the complaint that the deposit was made for a certain purpose. The written agreement states that purpose. I think the proof of the alleged counterclaim was not admissible to contradict this admission in the pleading and the written agreement.
Viewing the evidence as most favorable to the plaintiff, at *836the time of the first delivery he informed the district representative, Matson, who was attending to the delivery and acted with the defendant in the making of the contract, that he desired the October fifteenth shipment to be delayed, and the representative told him he would see what he could do in the matter and advised the plaintiff to write a letter to the defendant asking the delivery for October fifteenth to be set forward “to a date when I think there is a possible market for them.” The defendant was informed by Matson of this conversation. The letter was not answered, the cars were not shipped and the plaintiff was never requested to accept the cars thereafter, but about ¡February first, without any communication with the plaintiff, defendant gave the agency to another and thereby permanently deprived the plaintiff of any benefits from the contract, and when the plaintiff learned of it he told the defendant, “ I didn’t care so much about his taking the agency away from me, but I would like to have my money.”
Upon this evidence the jury might have found that the defendant waived the delivery on October fifteenth, and set the time of the contract running in such a way that the plaintiff could not be put in default until after a demand was made upon him.
The court charged at the plaintiff’s request that the agreement might be subsequently modified by parol and they should take into consideration whether such a modification had been effected, but refused to charge that “ if the jury find that the written agreement was modified so as to relieve the plaintiff of any obligation to take other autos, then the defendant may not retain the $160 without proof of damage.” In refusing to make the charge the court remarked: “it is still a question for the jury whether by the original agreement they were to retain the $160 in case the full number of cars were taken or not. That is a question for them. ” If the defendant. consented that the plaintiff need not take any more cars, plaintiff was not in default in accepting the cars, and in the absence of an agreement to the contrary the rights of the parties would be substantially the same as if the contract had been fully performed. We must assume that the deposit made was *837for the purposes stated in the pleadings and the agreement. The defendant could not retain the money if the plaintiff accepted all the cars or if the defendant relieved it from that obligation without qualification.
Lyon, J., concurred.